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McCullough awarded publicly funded lawyer for upcoming murder appeal

April 27, 2017   ·   0 Comments

By Mike Pickford

An Orangeville man convicted of first-degree murder for the 2013 slaying and dismemberment of one of his closest friends in a London hotel room has been granted publicly funded counsel for his appeal of the conviction.

Almost a year to the day since he was found guilty of butchering 20-year-old Alex Fraser, also an Orangeville resident, and stuffing his body parts into two hockey bags on a grizzly night in September 2013, James McCullough is arguing that evidence and testimony presented during his trial shouldn’t have been heard by the jury.

While Mr. McCullough openly admitted in court to stabbing Mr. Fraser up to 29 times in the hotel room they were sharing in London, he and his trial counsel have consistently rejected any notion that the murder was carried out so he could fulfill a longstanding cannibalistic fantasy – something the prosecution continuously pushed during the 2016 trial.

The Crown pointed to a conversation the accused had with a psychiatric nurse in 2012 where he admitted to having killed cats and “cut up their insides”, indicating he would like to do the same things to a person after which he would “consider” eating their remains so as to take on the person’s “good qualities and muscles”. The prosecution also introduced rap lyrics the accused had written at some point prior to the murder where he called his favourite drink the “blood of a Jew”.

Superior Court Justice Renee Pomerance allowed the evidence to be presented despite ruling that the prosecution could not allege that Mr. McCullough had eaten part of Mr. Fraser’s body, calling the notion “too speculative”. Police say a piece of Mr. Fraser’s arm has never been found.

Throughout the course of the trial, the defence maintained that Mr. McCullough was “defending his manhood” in the 2013 attack after Mr. Fraser, who was intoxicated at the time, made unwanted sexual advances to the point of attempted sexual assault and as such asked the jury to consider a verdict of manslaughter or second-degree murder.

The main ground of appeal advanced by Toronto lawyer Catriona Verner was that Justice Pomerance should not have allowed the Crown to pursue its theories centred on cannibalism.

In agreeing that the appellant should have publicly funded representation at the appeal hearing, Appeal Court Justice Peter Lauwers found that Mr. McCullough has “reasonable grounds” to contest his convictions for first-degree murder and committing an indignity on a body, rejecting the Crown’s pleas that the appeal did not contain sufficient merit to warrant the appointment of counsel at the public’s expense.

“It is not my task to decide on the merits of the appeal, but only (to) determine whether they are arguable,” Justice Lauwers ruled.

“I am persuaded that the trial judge’s admission of the statements to (the nurse) and the rap lyrics gives rise to arguable grounds of appeal. This is particularly so given the relatively unsettled state of the law in relation to the admission of evidence of rap lyrics.”

The Appeal Court judge said the evidence “was laced with prejudicial references to cannibalism, made considerably more salient because some of the deceased’s tissue was missing.”

He went on to reject the Crown’s submission that Mr. McCullough could effectively present his appeal without the help of a lawyer, particularly since a letter from lawyer James Lockyer appealing Legal Aid Ontario’s refusal to fund the appeal argued the legal issues well.

“The stakes for the applicant in the appeal, with a conviction for first-degree murder, could not be higher. In my view, this appeal contemplates a complex and nuanced legal argument that requires careful excavation of the facts, the evidence, the jury charge and the law. The exercise would daunt many lawyers, let alone a lay person like the applicant, who is unsuited to the task by experience, education, capacity and personal disposition,” Justice Lauwers added.

Justice Lauwers then pointed to section 684(1) of the Criminal Code in designating that all legal fees and disbursements, including preparation for and attendance on the current motion, would be paid by the Attorney General.

No date has yet been set for the appeal, but it is expected that Mr. McCullough’s counsel will again argue that his client is guilty only of manslaughter or, at worst, second-degree murder, which would make him eligible to seek parole after as little as 10 years instead of the mandatory 25 years for first-degree murder.


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